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9-25-1986

The Congress, The Purse, The Purpose, and ThePowerAbner J. MikvaU.S. Court of Appeals

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Repository CitationMikva, Abner J., "The Congress, The Purse, The Purpose, and The Power" (1986). Sibley Lecture Series. 57.https://digitalcommons.law.uga.edu/lectures_pre_arch_lectures_sibley/57

GEORGIA LAW REVIEWVoLumE 21 SPEcIAL IssuE 1986 NtumEm I

CONGRESS: THE PURSE, THE PURPOSE, ANDTHE POWER

Abner J. Mikva*

The first amendment to the Constitution, Justice Hugo Blackonce said, was first by design, and not by happenstance; its place-ment signified that to the country's founders, the freedoms of speechand press and religion were of primary concern. So too article Iof the Constitution, establishing the Congress of the United States,was first by design rather than by happenstance; its placementreflects the founders' intent and expectation that Congress wouldbe the dominant branch.

To ensure that Congress would act as the first branch of gov-ernment, the constitutional framers gave the legislature virtuallyexclusive power to control the nation's purse strings. Even then,when the nation's purse was small and the amounts in questionmeager, experienced participants in government knew that the powerof the purse was the most far-reaching and effectual of all gov-ernmental powers. This power the Framers chose to lodge in Con-gress. Doubtless they knew that granting the power of the purseto Congress would have costs. Doubtless they understood that a

* Judge, United States Court of Appeals for the District of Columbia Circuit.Prior to his appointment to the bench, Judge Mikva served five terms in theUnited States House of Representatives. He currently teaches a course entitledThe Legislative Process at Georgetown University Law School. This article is aslightly revised version of a speech-the Sibley Lecture-given at the Universityof Georgia School of Law on September 25, 1986.

Editor's Note: In accordance with Judge Mikva's wishes, numbered citationsappear following this article. They cite only to authority and are not essential tocomprehension of the text. See Mikva, Goodbye to Footnotes, 56 U. CoLo. L.REv. 647 (1985).

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collection of diverse individuals representing diverse interests (anddivided into separate chambers as well) would less efficiently andless coherently devise fiscal policy than would a single "treasurer"or "fiscal czar." Yet they chose, for good reason, to suffer thiscost and bear its risks. And in so choosing, they laid down aprinciple of government no less grand, although apparently moreprosaic, than any other in the Constitution: the government worksbest-works in the most desirable, balanced, and responsive way-when the power of the purse lies in the hands of the Congress.Throughout our history, numerous events have threatened this prin-ciple. Often the President has invoked the need for efficiency andsought to reorder the constitutional allocation of power; sometimesCongress itself has done so. Yet the principle has survived and willcontinue to do so as long as we-judges, lawyers, and citizensalike-recognize its profound importance to our nation.

My statement that the Framers intended Congress to act as theprimary governmental branch may be shocking. Most of us learnedin our elementary school days that the Constitution establishedthree branches of government with separate, distinct, and roughlyequal powers. This well-known doctrine of separation of powerswas popularized by Baron de Montesquieu in his treatise Spirit ofthe Laws.' He claimed that tyranny could best be avoided by pre-venting the accumulation of all powers-legislative, executive, andjudicial-in the same hands. The chief proponents of the Consti-tution, during the debate over its adoption, relied on the celebratedMontesquieu doctrine to justify the need for the constitutional dis-tribution of power among three branches. They argued that theseparation of powers-under which Congress would manage thepurse, the President would wield the sword, and the courts wouldexercise the power of review-would protect individual liberties inthe newly formed federal government. Ambition would counteractambition, and those who administered each branch would have the"necessary constitutional means and personal motives to resist en-croachment of the others." ' 2

Yet the Framers never expected and no doubt never intendedthat the three governmental branches would be truly equal. Theinitial popularity of Baron de Montesquieu's doctrine on these shoresderived largely from the colonists' desire to establish an independ-ent, self-sufficient, and powerful legislative branch. And even whenthe broader implications of that doctrine came to be understood

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and embraced, the belief remained that the legislative branch wouldbe the first among equals-that it would lead and guide the nationmore powerfully than either the executive or the judiciary could.As James Madison wrote in one of the Federalist Papers, the leg-islature would "necessarily ... predominate." 3

The decision of the Framers to grant Congress the power of thepurse reflected their belief that a proper governmental system wouldhave the legislature at its core. The Framers understood the signif-icance of the fiscal power. Alexander Hamilton wrote in the Fed-eralist Papers that "[m]oney is, with propriety, considered as thevital principle of the body politic, as that which sustains its lifeand motion, and enables it to perform its most important func-tions. ' 4 James Madison added that the power of the purse is the"most complete and effectual weapon with which any constitutioncan arm" a governmental branch.5 This weapon article I of theConstitution placed squarely in the hands of Congress. Article I,section 8 gave Congress the power "to lay and collect taxes, duties,imposts, and excises." Article I, section 9 stated that "[n]o moneyshall be drawn from the Treasury, but in consequence of appro-priations made by law." The effect of these provisions, in line withthe intent of those who wrote them, was to give plenary powerover the nation's purse strings to Congress. It is true that a move-ment to make the Secretary of the Treasury directly accountableto Congress instead of to the President ultimately went down todefeat. 6 But the very strength of this movement serves to under-score the Framers' deep commitment to ensuring the fiscal prerog-atives of Congress. Their intent, as James Madison wrote in theFederalist Papers, was to guarantee that "the legislative departmentalone has access to the pockets of the people." '7

The value of granting Congress plenary power over fiscal mattersis no less and perhaps even more clear today than it was in 1789.First, decisions regarding taxation and expenditure should be madein our most representative of institutions. Roger Sherman said atthe Constitutional Convention that "[iun making laws regard shouldbe had to the sense of the people who are to be bound by them,and it is more probable that a single man should mistake or betraythis sense than the legislature." ' 8 In no context are Sherman's wordsmore true than in the context of fiscal policy. The justice, thereasonableness, even the efficacy of fiscal decisions depend uponthe government's having taken into account the diverse interests of

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its citizens. No institution is more willing-no institution is betterable-to consider and accomodate these interests than the legislativebranch. The Framers' decision to give budgetary power to Congressrested largely on this view. Indeed, the Framers chose to delegateonly to the House-the chamber most closely connected to theelectorate-the right to initiate revenue bills. Clearly, the Framersbelieved that decisions directly affecting the pocketbooks of ourpeople should be made by the governmental institution that is clos-est to them.

Perhaps even more important, Congress' power over the purse istoday a necessary precondition of a balanced governmental system.As I have already suggested, the Framers contemplated that thelegislature would tower above the other two branches. And Con-gress lived up to these expectations for many years. In the earlynineteenth century, French historian Alexis de Tocqueville wrotethat the "[s]truggle between President and legislature is bound tobe unequal for the latter, if it sticks to its plan, is always able toovercome any resistance he can put up." 9 Almost a century later,a then unknown political scientist at Princeton University, lookingwith despair at the seemingly impotent executive branch, arguedthat Congress was predominant "over its so-called coordinatebranches."' 0 Woodrow Wilson concluded that the vast array ofpowers Congress possessed under the Constitution made it "thedominant, nay, the irresistible power of the federal system, rele-gating some of the chief balances of the Constitution to an insig-nificant role in the 'literary theory' of our institutions."' But sincethe scholar Wilson wrote those words, the balance of power hasnotably shifted. The growth and increasing complexity of govern-ment, the frequency, scale, and terror of modern war, and theemergence of the mass media have transformed the role and powerof the executive branch. In this new and very different politicalworld, Congress' control over the nation's purse strings has becomeeven more critical than before.

I am reminded here of the close, in the mid-1970's, of the Viet-nam War. For years-arguably, for decades-Congress abdicatedits responsibility to resist this costly and futile foreign venture. Butwhen the legislature finally became convinced that the war in Viet-nam had to stop, it worked its will through its budgetary power.In 1974 and again in 1975, Congress refused to appropriate themore than one-half billion dollars requested by the President to

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continue the war effort. The denial effectively forced the cessationof hostilities; Congress had seized the initiative in exactly the man-ner contemplated by the founders. Had Congress not possessed thisplenary power-had the President retained any authority to raise,appropriate, or divert funds-this catastrophic war would certainlyhave continued. For the source of almost all congressional power-the spine and bite of legislative authority-lies in Congress' controlof the nation's purse. If ever Congress loosens its hold on thissource of power or if ever the President wrests it away, then, toquote the late Senator Frank Church, "the American Republic willgo the way of Rome.' ' 2 The delicate balance created by the Fra-mers will have been destroyed.

I do not mean to minimize or ignore the costs associated withcongressional control over the national budget. In the real world-or, at the very least, in the world of government-free lunches arefew and far between. Even at its best, budgetary control by theCongress is often an unwieldy and awkward process. To someextent, the difficulties of congressional action in this sphere simplymirror the difficulties of congressional action in any other. Thevery traits that make the American Congress so representative alsomake it less than perfectly efficient. In criticizing the notion of abicameral legislature, Benjamin Franklin used a well-known parable:

Has not the famous political fable of the snake with twoheads and one body some useful instruction in it? Shewas going to a brook to drink and, on her way, was topass through a hedge, a twig of which opposed her directcourse; one head chose to go on the right side of thehedge, the other on the left; so that time was spent inthe contest, and before the decision was completed, thepoor snake died of thirst. 3

Franklin, of course, had simplified the problem. For the snake hasnot two heads, but hundreds. In the House of Representatives, 435men and women, representing a wide variety €of political consti-tuencies and subscribing to a wide variety of political views, strug-gle each day for advantage. In the Senate, the number ofrepresentatives is smaller, but the power of each to delay and blockthe passage of legislation is vast. Concerted and effective action ineach chamber, and in both chambers combined, is of course pos-sible. When the congressional party is strong, when congressional

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leadership is effective, and when congressional procedures are con-ducive to orderly and coherent decisionmaking, conflict may sub-side and a consensus emerge such that Congress can act withdecision and dispatch. But the obstacles to effective congressionalaction are significant, and no commentator on (or participant in)the political process can afford to understate them.

Moreover, the hurdles that stand in the way of legislative effec-tiveness are at their highest when Congress attempts to make fiscaldecisions. The special difficulties in this context arise first from theimportance and potential impact of the decisions themselves. Everycitizen cares about the size of his tax bill; every citizen wishes toreap the benefits-and, perhaps unfortunately, to avoid the costs-of governmental spending. The depth and breadth of public con-cern in this sphere is itself one reason for placing control overfiscal matters in the hands of Congress, the body closest and mostresponsive to the people. But this same public concern increasesthe difficulty of concerted and judicious congressional action. Inthis sphere, as in hardly any other, each representative is subjectto intense-and usually conflicting-public pressures. Compoundingthese pressures is the elusiveness and complexity of the subjectmatter itself. When David Stockman, then the director of the Of-fice of Management and Budget, said in 1981 that "[n]one of usreally understands what's going on with all these numbers,' 1 4 hespoke no more than the simple truth. Of course, this problem doesnot afflict the legislative branch alone; remember that it was Stock-man, the supposed wizard of the executive office, who made thissomewhat bizarre admission. But it cannot be gainsaid that to ask535 men and women, most of whom have no expertise in the areaand all of whom are subject to parochial pressures, to agree onwise and judicious budgetary measures is to ask an extraordinarilydifficult thing.

The appropriate response to these difficulties, however, is not tocede budgetary power to the executive branch, but to improve Con-gress' own budgetary procedures. No set of procedures will elimi-nate all of the stumbling blocks to decisive and effective action byCongress in the fiscal sphere; many of these blocks are inherent inthe nature of the institution and the nature of the policy fieldinvolved. But Congress can work to mitigate the inefficiencies andinadequacies of the current budgetmaking process. This solutionappears somewhat unexciting; what is worse, it may appear illusory.

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History, however, suggests otherwise. Notwithstanding the variousobstacles to effective congressional budgeting that I have discussed,Congress has in fact substantially increased its capacity to developresponsible fiscal policy. The history of the past ten or twelve yearssuggests that efficacious internal reform of Congress' budgetmakingprocedures is not a fool's dream, but an eminently reasonable as-piration. I make this claim even at a time when tax cuts, militaryspending, and high interest rates have combined to give this nationits largest budget deficit ever.

The Congressional Budget and Impoundment Control Act of197415 is of course the best example of a congressional reformmeasure that has heightened Congress' ability to perform its budg-etmaking tasks. Prior to the Budget Act of 1974, Congress had noprocedures to equate the spending and revenue sides of the nationalbudget. Unlike in even the smallest business or household, no onewas responsible for the so-called bottom line. The AppropriationsCommittee spent, the revenue committees taxed, but no mechanismwas available to assess the continued impact of spending and taxingon budget surpluses or deficits. Without such a mechanism, Con-gress was understandably unable to formulate sensible fiscal policy.And because Congress was itself unable to develop a total budg-etary policy, it became highly dependent on the executive branch'sfiscal policy proposals.

The Budget Act of 1974 gave Congress, for the first time, thetools necessary to establish some control over the national budget.The Act created two budget committees, one in each chamber,which were given the responsibility to develop coordinated budgetproposals for the consideration of the entire House and Senate.The Act further established a timetable governing the development,presentation, amendment, and enactment of these budget proposals.Finally, the Budget Act created the Congressional Budget Office,which was designed to give Congress support in economic andbudgetary matters by collecting economic data and providing tech-nical expertise. Taken together, these provisions effected nothingless than a revolution in the way Congress controls the nation'spurse strings. The new process allows members of the Congress toexamine the budget as a whole document. No longer do severalcommittees work separately on different aspects of expenditure andtaxation without relating or comparing their efforts. This increasedcoordination allows Congress to plan fiscal policy, to conduct a

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sensible debate on national priorities, and, if it so chooses, to resistthe executive branch's proposals concerning expenditures and tax-ation. In 1976, Brock Adams, then the Chairman of the HouseBudget Committee, assessed the final budget resolution of the fiscalyear 1977 and commented that "perhaps (its] most important aspect... is the fact that it contains the budget of Congress and notthat of the President.' ' 6 The statement pinpoints what is the mostimportant aspect of the Budget Act of 1974: it allowed Congressto regain effective control over the nation's budget, as the Framershad intended and as our constitutional system demands.

Of course, the congressional budgetary process continues to showsome major flaws. The Budget Act has not completely preventedCongress from indeliberately accepting the President's fiscal policyproposals. In 1981, for example, the House and Senate leadershipused action-forcing mechanisms to divert Congress from the routeanticipated by the Budget Act and to compel precipitate decisionson each important element of the President's program for fiscalyear 1982. Minnesota Congressman William Frenzel not long after-ward objected that "[wie have been voting for ghosts and shadows,based on moonbeam, smoke and rainbow dust. What we are wit-nessing is a deterioration of the budget process.' 7 Regardless ofthe quality of the executive proposals at issue, Congressman Fren-zel's evaluation of the budgetary process appears correct. The BudgetAct as enacted in 1974 was designed to be a deliberate, thoughtfulprocess in which committees of expertise would maintain their le-verage over the programs with which they were familiar. The BudgetAct as acted upon in 1981 forced decisions on all of the majorbudget proposals before serious analysis of the President's programwas possible. From one perspective, Congress responded effectivelyto a perceived national mandate. On the other hand, such an ex-peditious implementation of major social change can be dangerous.The Congress was not intended to be a quick-hit institution, butrather an institution of careful deliberation. George Washington,for example, believed that the Senate should be the "saucer" inwhich the coffee cools. This role appears as important in budgetarymatters as elsewhere. By acting as it did in 1981, Congress abdi-cated its responsibility to keep tight control of the nation's pursestrings, and the Budget Act of 1974 did nothing to prevent this.

On the other hand, the budget process in some years arguablyhas consumed far too much congressional time. The whole body

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of legislative procedure by which congressional financial decisionsare now made is extremely cumbersome. Theoretically, Congress isto pass each year two budget resolutions, thirteen appropriationbills, one reconciliation bill, and perhaps revenue-raising legislation.Three major committees-Budget, Appropriations, and Taxation-are involved in each decision, not to mention each authorizingcommittee with respect to its own programs. Because of the com-plexities of the subject matter and the strong passions generated byit, Congress often takes a great deal of time to jump through thisset of legislative hoops. In these years, the federal purse stringshave threatened to strangle congressional initiative.

Finally, the Budget Act appears to have had little effect in curb-ing federal spending. This country's spending levels may not posequite the danger that some people believe they do. Expenditurebills bear only a portion of the responsibility for the federal debt:the nation's tax code bears the rest. And even the federal debtmay not be a harbinger of doom; although the sheer size of thedebt seems monstrous, the ratio of debt to income is today one-sixth of the size that it was in 1789.18 Still, the reduction of federalspending is a goal to which most Americans will subscribe. Andthat goal spurred congressional enactment of the Budget Act of1974. Many members of Congress initially believed that adoptionof the new procedures would work to cut federal spending, or atleast to slow its increase. They believed that the haphazard methodsof the past were responsible for the rate of federal spending andthat when representatives became able to view the budget in itsentirety, the growth of spending would naturally cease. But theBudget Act has failed to accomplish this objective. Some, it istrue, have argued that Congress would have spent even more moneyand created an even larger deficit absent the complex proceduresof the Budget Act. And some support for this claim does exist:compare the 53 billion dollar deficit of fiscal year 1977, whenCongress followed carefully the Budget Act's procedures, with the128 billion dollar deficit of fiscal year 1982, when Congress dis-missed those procedures from its mind.19 But others have insistedthat the Budget Act's procedures are themselves partly responsiblefor the continued growth of federal spending. They maintain, forexample, that in order to attract sufficient votes to pass their budgetresolutions, the Budget Committees often must accomodate spend-ing interests that have been rebuffed by authorization and appro-

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priations committees. In the end, the Budget Act probably has hadlittle effect in either direction. If Congress wishes to curb federalspending dramatically, it will probably have to take some otheraction.

Congress, of course, attempted to take such action when it passedthe Balanced Budget and Emergency Deficit Control Act,20 morepopularly known as Gramm-Rudman. This Act, like the BudgetAct of 1974, should properly be viewed as an effort by Congressto control and discipline its own budgetary processes. The decisionto set a maximum deficit amount for federal spending and torequire across-the-board cuts in such spending to reach the targeteddeficit level can be attacked as substantively misguided. But Con-gress' passage of the Act at least demonstrated a determination toretain control over its constitutional domain and an effort to ex-ercise that control in a responsible way. Ironically, Congress over-stepped its own bounds in attempting to impose self-discipline onits fiscal activities: the Supreme Court recently held that the powersvested in the Comptroller General by the Act violated the Consti-tution's command that Congress play no direct role in the executionof the laws. 21 The decision effectively scrapped the Gramm-Rudmanplan, but the legislators will probably agree at some point on aproposal to take its place. As is appropriate, Congress appearsready to consider with some earnestness plans to rationalize anddiscipline Congress' use of its fiscal powers.

The Budget Act of 1974 and the Gramm-Rudman Act representbut two legislative efforts to impose some order on Congress' budg-etary activities. There are other examples as well. The public debtceiling is a congressional attempt, albeit not a very successful one,to control the outcomes of Congress' fiscal processes. The originalBudget and Accounting Act of 1921, 22 although eventually leadingto greatly increased executive power, began as an attempt to helpthe Congress order its budget activities. Finally, the creation of theGeneral Accounting Office23 under the control of the Congress sig-nified a legislative desire to keep a close watch on fiscal affairs.Some of these attempts to order Congress' fiscal processes haveproved less successful than their sponsors might have hoped. Buttaken together, they show that Congress can act to amend andimprove its budgetary processes and that some such measures willmeet with success.

What is perhaps even more important, however, is that the Con-

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stitution's grant of fiscal power to Congress is not contingent uponsuch success. The recent Gramm-Rudman decision serves to supportthis point. Chief Justice Burger wrote for the Court: "No one candoubt that Congiess and the President are confronted with fiscaland economic problems of unprecedented magnitude, but 'the factthat a given law or procedure is efficient, convenient, and usefulin facilitating functions of government, standing alone, will notsave it if it is contrary to the Constitution. Convenience and effi-ciency are not the primary objectives-or the hallmarks-of dem-ocratic government. "'24 The Court, in the Gramm-Rudman case,was speaking to the legislature. But the point could be made tothe executive as well. No matter how inefficient, how incoherent,or how confused congressional action on the budget may sometimesseem, the power of the purse belongs to the legislative and not tothe executive branch.

This was the principle Richard Nixon ignored when he assertedas "absolutely clear" his right to impound congressionally appro-priated funds.2 Impoundments had occurred in American historybefore. President Jefferson impounded $50,000 that Congress hadappropriated for the construction of a frigate on the ground thata "favorable and peaceable turn of affairs on the Mississippi" hadrendered the war ship unnecessary.26 President Roosevelt impoundedmonies that Congress had appropriated for public works in aneffort to keep funds available for the war effort. And PresidentsTruman, Eisenhower, Kennedy, and Johnson also occasionally re-sorted to impoundment in order to meet their own policy objec-tives. Not until Richard Nixon's presidency, however, did thedangers of impoundment become "absolutely clear." According tothe Nixon administration's own calculations, it had impounded ordelayed expenditure of funds totaling over 11.8 billion dollars. Theadministration's figures, however, failed to include some six billiondollars appropriated by the Federal Water Pollution Prevention andControl Act; 27 the actual amount of funds withheld thus ap-proached eighteen billion dollars.

The Nixon administration used a variety of arguments to explainits impoundment of legislative appropriations that exceeded thePresident's budgetary requests. Most frequently, President Nixonsimply pointed to evidence of fiscal irresponsibility by Congress. Ifthe legislators could not do their job, he suggested, then the Pres-ident could do it for them. Sometimes, the Nixon administration

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buttressed this claim with arguments that had a more legal ring.Then Deputy Attorney General Sneed, for example, testified that"[tihe exercise of [the impoundment] authority by the President topromote fiscal stability ... is in the great tradition of checks andbalances upon which our Constitution is based." ' 28 Attorney GeneralRichard Kleindienst and Office of Management and Budget DeputyDirector Casper Weinberger claimed that the power to impoundfunds was implicit in the provisions of article II, which endowsthe President with executive authority. 29 A somewhat more limitedargument posited that when the President's budget contained arequest to rescind certain funds, he need not spend those fundsuntil Congress had had an opportunity to consider his request.Finally, the Nixon administration contended that, in general, anappropriations bill was merely an authorization to spend, settingan upper but not a lower limit.

Neither the courts nor Congress was much impressed. Most ofthe Nixon administration's impoundments reached the courts, andin that forum the administration suffered virtually complete defeat.By 1974, the plaintiffs had overturned impoundments in more thanfifty cases, whereas the courts had upheld the President in onlyfour. One case concerning impoundment, Train v. City of NewYork,3° reached the Supreme Court. In 1975, the Court decidedthat the Clean Water Act, notwithstanding ambiguities in its lan-guage and legislative history, did not permit the President to with-hold any of the funds provided by Congress.3 1 Although the decisionturned essentially on issues of statutory interpretation, the opinionunderscored the important constitutional principles involved-mostnotably, the authority of Congress to mandate spending and theresponsibility of the President to carry out the laws.

Meanwhile, Congress responded to the threat that the impound-ments posed to its fiscal authority. Title X of the Budget andImpoundment Control Act of 1974 established a set of proceduresto govern all presidential efforts to withhold funds. The title re-quired that the President submit a special message to Congresswhenever he proposed to withhold appropriated monies. A proposalto rescind funds-that is, to eliminate funding completely-requiredthe approval of each house of Congress within forty-five days. Aproposal to defer the expenditure of funds to another year re-mained in effect unless disapproved by either house. At approxi-mately the same time, the House Judiciary Committee seriously

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considered, but ultimately rejected, a proposal to list President Nix-on's impoundment policies as one of the grounds for his impeach-ment.

The response of the courts and Congress was clearly proper inlight of the nature of the executive action involved. To the extentthat the President can impound congressionally appropriated funds,he is able to deny Congress power to fulfill its constitutional re-sponsibilities. As the House Report to the Impoundment ControlAct stated, "legislative decisions have no meaning if they can beunilaterally abrogated by executive impoundments."3 2 The Consti-tution, of course, grants to the President the responsibility andauthority to execute the laws. But this provision defeats rather thansupports the case for impoundment. An appropriations act consti-tutes a law that the President must faithfully execute. And as theSupreme Court wrote in Kendall v. United States ex rel. Stokes,33

"[tlo contend that the obligation imposed on the President to seethe laws faithfully executed, implies a power to forbid their exe-cution, is a novel construction of the constitution and entirely in-admissible." 34 The Constitution does not require that the Presidentbe a mere clerk, and his power to execute the laws must necessarilyinvolve some discretion. But to imply from this discretion a poweras great as impoundment is to allow the exception to swallow therule and to ignore the basic tenor of the Constitution.

The denial of the power to impound hardly renders the executiveimpotent in the budgetary process. The President may (and invar-iably does) present a comprehensive set of budget proposals toCongress. He may use his position as leader of the party to try topush these proposals through the legislative body. He may use hisunparalleled access to the media-his "bully pulpit," so to speak-to sway the public's mind and thus to force Congress' hand. Andhe may veto, subject to congressional override, any piece of leg-islation that he believes inconsistent with the public good. ThePresident may not, however, take upon himself any other or ad-ditional powers. When he does so, he flouts the intent of theFramers that Congress control the power of the purse. He upsetsthe delicate compromises and intricate bargains that form the heartof the legislative process. And he subverts the role and functionof Congress within our carefully balanced constitutional structure.

The same dangers lurk in any decision by Congress to hand overpowers to the executive branch. Throughout our history, both Pres-

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idents and members of Congress have proposed that Congress yieldsome significant part of its budgetary authority to the executiveoffice. On occasion, these proposals have urged nothing less thanan executive budget. During the debate on the Budget and Ac-counting Act of 1921, for example, a serious attempt was made toinstitute such a budget.35 Although the alternative proposals differedin detail, most required a two-thirds majority vote for the passageof any expenditure to which the President objected. One proposalallowed Congress to increase the amounts requested in the Presi-dent's budget only by means of separate legislation, thus subjectingeach budgetary increase to the President's veto power. This pro-posal differs little from another frequently urged amendment toour governmental system-the line item veto. Since 1873, whenUlysses Grant first proposed the idea, over 150 legislative proposalshave called for Congress to give to the President the ability to vetoindividual parts of a bill. Congress has thus far rejected such pro-posals; with any luck, it always will.

For regardless of whether Congress yields budgetary authority orthe President usurps it, the threat to our constitutional order is thesame. In our governmental system, the legislature does and musthave plenary power over the budget. The power of the purse isthe strength of the Congress; take that away, and all else will fall.Is Congress' management of the budget inefficient? Surely it is;the workings of democratic institutions always are. Is it cumber-some? Of course it is; getting a majority of 535 political primadonnas to agree on anything is a difficult task. But if we wish tolive in a pluralistic and free society, we will strive to ensure thatCongress retains exclusive control of the nation's purse. Only inthat event will the delicate balance of our constitutional structurebe preserved.

ENDNOTES

C. MONTESQUIEU, THE SPIRIT OF LAWS (T. Nugent trans. 1873).

2 THE FEDERALIST No. 51, at 349 (J. Madison) (J. Cooke ed. 1961).Id. at 350.

4 TBE FEDERALIST No. 30, at 188 (A. Hamilton) (J. Cooke ed. 1961).TBE FEDERALIST No. 58, at 394 (J. Madison) (J. Cooke ed. 1961).

6 2 THE REcoRDs OF THE FEDERAL CONVENTION OF 1787, at 614 (M. Farranded. 1911).

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THE FEDERALIST No. 48, at 334 (J. Madison) (J. Cooke ed. 1961).9 2 THE RECORDS OF THE FEDERAL CONVNION OF 1787, at 585 (M. Farrand

ed. 1911).9 A. TocQuEvILLE, DEMocRACY IN AmERICA 110 (M. Lerner & J. Mayer cds.

1966).10 W. WILSON, CONGRESSIONAL GOvERNMENT: A STUDY IN AMEIcAN POLITICS

11 (1885).1 Id. at 23.12 M. FRIBOURG, THE UNITED STATES CONGRESS: MEN WHO STEERED ITS COURSE

vi (1972).13 A. NEVINS, THE AmERIcAN STATES DUmNo AND AFTER THE REVOLUTION,

1775-89, at 151 (1969).14 Greider, The Education of David Stockman, THE ATLANTIC, Dec. 1981, at

27.Is Pub, L. No. 93-344, 88 Stat. 299 (codified as amended in scattered sections

of 2 U.S.C. and 31 U.S.C.).16 Budget and Appropriations, in 32 CONGRESSIONAL QUARTERLY ALMANAC 673

(1976).17 Boston Globe, June 6, 1982, at A33.is 2 BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, HISoRICAL STATIsTIcs

OF THE UNITED STATES 1104 (1975); BUREAU OF THE CENSUS, U.S. DEP'T OFCOMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES, 1986, at 305 (1985)[hereinafter STATISTICAL ABSTRACT],

19 STATISTICAL ABSTRACT, supra note 19, at 305.o 2 U.S.C. §§ 901-22 (Supp. III 1985).

21 Bowsher v. Synar, 106 S. Ct. 3181 (1986).- 31 U.S.C. §§ 1-28 (1976), reenacted as 31 U.S.C. §§ 701, 1101-14 (1982).

31 U.S.C. §§ 702-78 (1982 & Supp. III 1985).24 Bowsher, 106 S. Ct. at 3193-94.

N.Y. Times, Feb. 1, 1973, at 20, col. 6.- 8 ANNALS OF CONG. 14 (1983).

33 U.S.C. §§ 1251-1376 (1982).- Impoundment of Appropriated Funds by the President: Hearings Before Sen-

ate Government Operations and Judiciary Comms., 93d Cong., Ist Sess. 363(1973).

See Hearings on Executive Impoundment of Appropriated Funds Before theSubcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 92dCong., 1st Sess. 95 (1971) (statement of OMB Deputy Director Casper Weinber-ger); N.Y. Times, Apr. 6, 1973, at 16, col. 3 (quoting Richard Kleindienst).

420 U.S. 356 (1975).31 Id. P32 H.R. REP. No. 93-658, 93d Cong., ist Sess. 16 (1973), reprinted in 1974

U.S. CODE CONG. & AD. NEws 3462-63.33 27 U.S. (12 Pet.) 524 (1838).- Id. at 613.35 See 61 CONG. REc. 662, 980-89, 1851-59 (1921).

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